Victory Lap

 

Special Counsel John Durham, rear, in his first movie role, Horse Feathers, 1932.

Let's just review why the FBI started the Crossfire Hurricane investigation sometime toward the end of July 2016.

After a long nomination campaign in which foreign relations played an unusually big role, dominated by candidate Trump's interest in "getting along" with Russia, whose president, Vladimir Putin, he knew "very well" after hanging out with him in the 60 Minutes green room in September 2015

Fact check from my friends at @CBSNews in the row behind me: @60minutes doesn't have a green room, Trump interviewed in NYC, Putin in Russia

— Betsy Klein (@betsy_klein) November 11, 2015

and who was said (also falsely) to think Trump was a "genius", and during which Democratic National Committee computers were hacked by what they claimed (correctly) were Russian intelligence forces, some surprising things happened during the Republican convention in Cleveland, attended by Russian ambassador Sergey Kislyak; 

Moar Impeachment!

The embarrassing projection doesn't fall far from the tax cheat. pic.twitter.com/RqTY585VEC

— emptywheel (@emptywheel) January 31, 2022

So I had to take a look at the Breitbart story, which reports:

A criminal IRS investigation into Hunter Biden — President Biden’s son — appears to have convened a grand jury as far back as May 2019, a confidential subpoena served to JPMorgan Chase bank reveals. The subpoena also seeks bank records of James Biden, the president’s brother, which appears to be the first time another Biden family member has surfaced in connection with the investigation.

Actually, this isn't exactly news; it seems to be an investigation we could have known about for quite a while, since December 2020, when Hunter Biden himself found out that his taxes were under investigation, and immediately issued a statement. According to CNN's reporting picked up by Wilmington TV,

Leaker Seeker

 

Fanciful depiction of Washington composing his Farewell Address, Via Doug Fabrizio, RadioWest, Salt Lake City.

On 26 January 2018, Charlie Savage reported in the New York Times that he'd learned something startling from anonymous "colleagues" of White House counsel Don McGahn: That President Donald J.Trump had decided to fire special. counsel Robert Mueller, and McGahn had stopped him with a threat to resign—

Mr. McGahn has been interviewed at length by Mr. Mueller’s team as it has sought to understand the president’s motivations and thinking. The investigators have also obtained memos, notes and emails about how Mr. McGahn tried to carry out Mr. Trump’s decisions in legally appropriate ways — such as objecting to a first draft of Mr. Trump’s letter firing Mr. Comey that mentioned the Russia investigation.

Mr. McGahn’s threat to resign is an example of how he has tried to both help and constrain an idiosyncratic client who hates to be managed and defies the norms of the presidency. Not everyone believes he has been successful.

Trump reacted that very day, as we know from the Mueller Report, but was unable to move McGahn to deny Savage's report:

Not Quite a Smoking Gun

Breville Pro Smoking Gun.

William Barr got his copy of the Mueller Report on Friday, 22 March 2019, about five weeks after he assumed the attorney generalship of the United States. That Sunday he sent Congress his four-page letter describing his views on what the 448 pages said, which was not as he later explained a "summary" of it, just a statement of its "principal conclusions", including two main failures to draw conclusions: on the subject of Russian active measures in the 2016 election it

did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election

and on the subject of actions by the president, Mueller had

considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment.

Neither one of which was exactly true, as, one thinks, he might have found out if he had had time to read the thing. He did, however, with the assistance of Deputy Attorney General Rosenstein, come to his own opinion, 

that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.

And on the same Sunday, 24 March, two Justice Department lawyers drafted a memo summarizing the advice they had given Barr in reaching this decision, to which Barr was evidently referring when he told Congress when he gave them the report itself on 18 April, that

Literary Corner: His Subjects Are Water

David Hockney, "Stage Set, Abstract", fax machine print, November 1988, National Gallery of Australia.

Where's Durham?

By Donald J. Trump, 45th President of the United States of America

Where's Durham?
Is he a living,
breathing human
being? Will there ever
be a Durham Report?

Short answer to this plaintive text, issued by the Retired Emperor from his Florida redoubt/resort is, not one that will do you any good, pal.

Having retired from his day job as Connecticut US attorney, special counsel John Durham seems to be clinging to this gig, hiding his budget (as Emptywheel notes) and exploring who knows what angle of how to show that it's a crime to suspect Donald Trump of a crime if you do it in an official capacity. Equally-retired imperial consigliere William Barr had promised the boss he'd jail some of the FBI guys who tried to catch him but virtually nothing has happened since Kevin Clinesmith, the lawyer who actually did commit a sort of crime in preparing the application for the third or fourth surveillance order on Carter Page, got away with 12 months' probation and 400 hours of community service, and it looks like nothing ever will. Trump is probably agitating for a cut of whatever Durham's getting paid.

But just pause to enjoy the lapidary concision of the piece—the pain and wistfulness expressed in its 15 words, almost Japanese.

Emperor Takakura, who ascended the throne in 1168 at the age of 7, a prisoner of the wiles of his father and future father-in-law, and and retired in favor of an infant son at 19, in 1180, dying some 10 months later. Via Wikpedia.

 

The Emperor is a ship.

His subjects are water. 

The water enables a ship

to float well, but sometimes

the vessel is capsized by it.

His subjects can sustain an 

Emperor well, but sometimes 

they overthrow him

—Emperor Takakura (attibuted)

A billion tiny October surprises

Image via INKinc.

A week or ten days ago this thing caught my attention: from Fox News's Maria Bartiromo, a story on the counter-counterintelligence investigation being conducted by John Durham at the behest of William Barr to look at the "origins" of the FBI's Crossfire Hurricane probe of the relations between Russian operations in the 2016 election and a select group of Trump associates:

"It is unlikely that we will get a John Durham interim report or any indictments before the election. Now, just 37 days away, a debate has begun within the Department of Justice, as the timing of John Durham's criminal investigation conclusions. I'm being told by sources it is now too close to the election and could be seen as politically motivated," Bartiromo said on "Sunday Morning Futures."

This despite Barr's assurances, going back as far as July, that it would not be politically motivated

“I will be very careful. I know what Justice Department policy is,” Barr said during a long-awaited appearance before the House Judiciary Committee. “Any report will be, in my judgment, not one that is covered by the policy and would disrupt the election.”

My first thought was, well, that's the end of that; Durham can't get what Trump and Barr want him to get (indictments against McCabe, Strzok, and Ohr, and in their steamier fantasies Comey and Mueller, and in Trump's wet dreams Obama and Brennan), and he's throwing in the towel: another October surprise bites the dust:

Stupid Economist Tricks: Pattern or Practice

Drawing by George Herriman. Via.

After the savage beating of Rodney King by Los Angeles police was filmed in 1991 and the film became public—the original viral video of police violence—the street demonstrations and (naturally) accompanying misbehavior and property damage eventually led to a more focused effort to do something about police violence, in which our friend Senator Joe Biden played a distinguished part. Namely, in his much-maligned 1994 Violent Crime Control and Law Enforcement Act, there was a provision allowing the Justice Department's Civil Rights Division to step in whenever they saw evidence of a police department engaging in a "pattern or practice" of violating people's constitutional rights.

In what came to be called a pattern or practice investigation, a preliminary inquiry (which could be any DOJ lawyer reading a newspaper story) can lead to a formally announced review by designated experts of the department's training policies, disciplinary procedures, and day-to-day interactions with the public, and that can lead in turn to one of a list of possible actions: a Technical Assistance Letter, which is a form of friendly advice from DOJ to the department, not especially binding; a Memorandum of Understanding which is a more rigorous step but still doesn't involve the courts; or an actual lawsuit, which isn't meant to proceed to trial but to the negotiation of a Consent Decree, a legally enforceable agreement to whatever the department needs to do to rectify the situation. It quickly became a really good resource, at least sometimes, as my source for this history, a Bloomberg article from the Freddy Gray moment in 2015, explains, as in the case of one of the first investigations, that of the same Los Angeles Police Department:

And in Trump Nemesis News

Drawing by Baulking Trams/DeviantArt.

Before he stepped down on 15 May as chairman of the Senate Intelligence Committee as a result of the Covid insider trading scandal, Senator Richard Burr (R-NC) made an official request, side by side with the ranking member Mark Warner (D-VA), to the Trump administration, asking it to move quickly to declassify the fifth and final volume of the committee's report on Russian active measures in the 2016 presidential election—the one that finally gets down to examining the interactions and relationships between the Russian activities and the Donald Trump campaign. It's said to be over a thousand pages long.

I should say straight out that you shouldn't count on the report providing the "smoking gun" evidence for an indictment of Trump—this is a counterintelligence investigation, not a criminal investigation, so it's not what they were looking for. Though you shouldn't be sure it won't, either: it's going to have a lot of detail on Trump's personal business relations in Russia going back from who knows how long before 2013 and continuing up to after the election, when his lieutenants were still working on the Trump Tower Moscow deal; and on the not necessarily illegal collusion between Trump's agents like Manafort and Stone with Putin's agents like Deripaska, which may or may not go over the line into definitely illegal conspiracy. (I think it does, of course; as with a huge theme I've been catching up with from Emptywheel, laying out evidence that Deripaska engineered the disinformation in the Steele dossier to benefit the Trump campaign and Manafort was aware of it.)

A fascinating Twitter thread from @BlakesMustache yesterday (it's under protection right now, and you may not be able to access it—I can't access it myself—but there's the link, for the record) set forth the possibility that it's got enough damaging information to have Trump, and Barr, really freaked out, explaining a whole bunch of strange things that have been going on lately. I want to walk through some of this material (as best I can without the tweets) to see where it gets us.

Innocence of Presumption

Moving goalposts, via.

I know you're all sick of Mike Flynn by now but Mr. Bret Stephens ("Michael Flynn and the Presumption of Guilt") piping up to put his imprimatur on the worst version of the "Flynn is innocent" canard in his most offensively bland "just asking questions" manner really has to be fisked.

“Damn right, exactly right,” the fired, retired three-star general said in answer to audience chants of “lock her up.” “And you know why we’re saying that? We’re saying that because if I, a guy who knows this business, if I did a tenth, a tenth of what [Hillary Clinton] did, I would be in jail today.” This was said by a man who, as a former head of the Defense Intelligence Agency and top foreign policy adviser to Donald Trump, had already taken $45,000 from the K.G.B. regime in Moscow and would later take $530,000 from the Islamist regime in Ankara as an unregistered foreign agent. If Flynn had been prosecuted, judged and sentenced according to his own moral arithmetic, he’d be behind bars today.

Fortunately he isn’t, because sleazy behavior isn’t the same as criminal conduct.

Way to sneak in the suggestion that Hillary Clinton probably is guilty of some moral equivalent to bagging over $5 million (i.e., ten times Flynn's acknowledged $530K)  as an unauthorized foreign agent without bothering to say what you think it might be. And the suggestion that what we agree Flynn did is just sleazy behavior, not criminal conduct.

Violating the Foreign Agents Registration Act is a crime. Rick Gates and Paul Manafort, for example, have pleaded guilty to it, among other crimes, and are doing time as we speak. And while Flynn's first legal team negotiated him down to more lying in that case—to an uncharged count of filing a false FARA declaration—it is clearly stipulated in the Statement of Offense:

Out Like Flynn Revisited

OK now it's really getting crazy, as the Justice Department seems to think it's found a way to pardon Mike Flynn without giving Trump the trouble of doing it himself. I'm recapitulating some of the things I was thinking about at the time of Flynn's second guilty plea, in December 2018, in the light of what we've learned since then from the Mueller investigation, as a response to the Flynn news.

New York Post editorial page:

Flynn’s supposed crime was lying to FBI agents in a January 2017 interview at the White House. Yet the concealed evidence included 1) a top FBI official’s notes suggesting the entire purpose of the interview was to catch Flynn in a lie, or get him to admit to a technical violation of the Logan Act — all in order to force him from office. And 2) an internal Justice Department memo, from the day before that interview, calling on the FBI to close the Flynn investigation because agents had dug up absolutely no wrongdoing.

In fact, they already had the transcript of Flynn’s call with the Russian ambassador that was the supposed reason for the interview — and knew he’d said nothing improper, just things an incoming national-security adviser should discuss.

Actually no. The calls Flynn exchanged with Ambassador Kislyak from where he was supposed to be on vacation in the Dominican Republic between 29 and 31 December 2016 were a response to what the Presidential Transition Team regarded as an emergency, after President Obama imposed new sanctions on the Russian state in return for Russia's well-established interference in the 2016 presidential election and Foreign Minister Lavrov announced that Russia would be retaliating with measures of its own. After getting briefed by the PTT, Flynn called Kislyak (whom he'd met for the first time with Jared Kushner on 30 November, at Trump Tower, for a conversation in which Kushner had talked about Trump's desire to "start afresh" with Russia and Flynn lamented the lack of a secure line for them to communicate—secure, that is, from observation by the US government) and urged him to stop President Putin from said retaliation because if he showed some restraint that would make it easier for the incoming Trump administration to end all the sanctions, including those related to Russia's invasion of Ukraine and seizure of Ukrainian territory, and its murder of the whistleblowing attorney Sergey Magnitsky; two days later Putin agreed.

The PTT was, as we now know, intensely involved with these calls, consulting with Flynn by email and phone before and after each one, through his deputy K.T. McFarland, who was at the Mar-a-Lago club with the president-elect's party:

Hi It's Stupid: Barr

Hi, it's Stupid to say old Billy Barr was literally angry with Trump last week when he told ABC News, on the subject of Trump's Twitter polemic against the Justice Department in re the Roger Stone sentencing,

I cannot do my job here at the department with a constant background commentary that undercuts me. To have public statements and tweets made about the department, about people in the department, our men and women here, about cases pending in the department and about judges before whom we have cases, make it impossible for me to do my job and to assure the courts and the prosecutors in the department that we're doing our work with integrity.

Everybody knows he was just pretending to be mad because Trump tweeting his denunciation of the DOJ sentencing request just before Barr was about to up and withdraw it, and then tweeting his praise of Barr after he did that thing revealed that Barr is just a toady for Trump who does whatever abusive thing Trump wants and—

Barr's Zombie Investigation

From the CDC's Zombie Preparedness site.

I think I know what this story—

Justice Department officials have shifted an administrative review of the Russia investigation closely overseen by Attorney General William P. Barr to a criminal inquiry, according to two people familiar with the matter. The move gives the prosecutor running it, John H. Durham, the power to subpoena for witness testimony and documents, to convene a grand jury and to file criminal charges.

—is about. It's about Trump, and the idée fixe of Trump's increasing paranoia: that he must get to his enemies by using their weapons, of saying "bad things" and getting "dirt". Investigate them all! Lock them up! And its failure so far, which has been accelerating in recent weeks, as Barr's meta-investigation falls apart.

That is: Barr's task, as you'll remember, is to find that there was something wrong with the FBI's investigation of Russian interference in the 2016 presidential election, which eventually became, after Trump fired the FBI director, an investigation of Trump himself under the direction of Special Counsel Mueller. Trump has been complaining about this since long before it was understood that he had anything to do with it, whether because it was suggesting "bad things" about V.V. Putin, or because it was depriving him of Manafort's services, or after the election because it was suggesting his victory wasn't legitimate, or because it was forcing him to let Flynn go, or because "they were spying on me!" And trying in secret to put a stop to it, as chronicled in Mueller's volume II.

Government of men

What -Gate is it going to be? I was thinking maybe we should call it Greatgate, i.e., the Great Gate of Kiev. Btw if you only know these pieces in the stylish orchestration by Ravel, you will be surprised by the mystery and emotion of Musorgsky's original piano suite.

Very depressing post from Steve M warns us not to get our hopes up because this thing of Trump putting pressure on Ukraine's new president Volodymyr Zelensky is not going to go anywhere, with which I agree, though for somewhat different reasons—I don't see the use of putting so much blame on Democrats, especially Speaker Pelosi, as they maneuver their way through an inconceivably strange situation.

It was on 25 July, the very day after Robert Mueller's less than devastating congressional testimony, note Philip Rucker, Robert Costa, and Rachael Bade in a useful WaPo piece, that Trump, having declared himself totally exonerated of any attempt to collude with a foreign government to influence a US election, made that phone call in a different attempt to collude with a different foreign government to influence another US election; "Trump's Ukraine call," say the headline writers, "reveals a president convinced of his own invincibility."

Unleashed Kraken

Charles Boyer and Ingrid Bergman in George Cukor's Gaslight, 1944, via Vox.

If you were startled to hear Big Donald tossing out dark hints of an unusually vast international conspiracy against him—

“So what I’ve done is I’ve declassified everything,” Trump told reporters at the White House on Friday before leaving on a trip to Japan.

“[Attorney General Barr] can look and I hope he looks at the UK and I hope he looks at Australia and I hope he looks at Ukraine.

“I hope he looks at everything, because there was a hoax that was perpetrated on our country.”

—I may be able to help. We're actually contemplating two different and equally idiotic conspiracy theories, one for UK and Australia and one for Ukraine.

The latter is Rudolph Giuliani's developing hypothesis that Ukrainian authorities after the Euromaidan revolution didn't have any reason to investigate how Paul Manafort got himself a $66-million cut of the pillaging of Ukraine by the pro-Russia Yanukovych regime—why on earth would they want to know anything about that?—but only did it because the sneaky Democratic National Committee tricked them into it, to harm the Trump campaign (as we briefly noted a couple of weeks ago).

Lowering the Barr

From Mary Ellen, our attorney general:

I hope Twitter will let me post my cartoon without demur. pic.twitter.com/sTq5hu5eUE

— Mary Ellen Sandahl (@blueeyedgrass) May 18, 2019

Mueller Blogging

Dahlia Lithwick on my radio said something I was starting to think in my own half-assed way on Kamala Harris's questioning of the attorney general yesterday, that it was kind of weird when she was browbeating Barr over whether he had looked at the original evidence on which Mueller's failure to decide whether Trump had obstructed justice or not, because do people at that level really listen to all the tapes look at all the canceled checks and so forth?

And what was important, which Harris apparently missed: that his lack of familiarity with the evidence materials was the least of it. He didn't seem to be very familiar with the report itself, or even the executive summaries. For example, he didn't know who Konstantin Kilimnik was (quoting from Philip Bump/WaPo's survey of some of the stuff Barr didn't seem to know)—

“What information was shared?” Barr asked.

“Polling data was shared, sir,” Booker replied. “It’s in the report; I can cite you the page.”

“With who?” Barr responded.

Booker continued with his questioning.

And more significantly, he didn't seem to know that Mueller had explained why he didn't make a ruling in the obstruction case, leaving it to Congress:

And not to the attorney general. It's almost as if Barr decided what he was going to say first, and looked at the report afterwards, and it doesn't look good.

Breaking

Photo by Andrew Harnik/AP via NBC.

Looks like Mueller read Barr's four-pager the same way I read it:

After Barr's four-page summary-not-a-summary. Don't think Mueller response to the spin conference is going to be available this soon. https://t.co/kHxlnSrNxO

— The Young and the Vibrant (@Yastreblyansky) April 30, 2019

It's the way Barr report was written ("did not find") specifically in order to be misread by the press ("there was no evidence") and to ratify Barr's own (wrong) conclusion that there should be no obstruction charges

— The Young and the Vibrant (@Yastreblyansky) April 30, 2019

Barr didn't tell any lies in the letter, but he wrote it to be misunderstood. And it looks as if he held back the summary reports after Mueller asked him to release them—

The letter made a key request: that Barr release the 448-page report’s introductions and executive summaries, and made some initial suggested redactions for doing so, according to Justice Department officials....

Barr said he did not want to put out pieces of the report, but rather issue it all at once with redactions, and didn’t want to change course now, according to officials.

—in order to make more time for the false impression to settle into popular belief. As I said when Mueller investigators first began airing their discontent, in the Times story of 4 April. Now I'm watching Chris Hayes reconstruct what I told you all a month ago.

Quick note: Barr lies

Barr certainly lied in a very material way in the press conference when he said "no evidence":

the Special Counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations. In other words, there was no evidence of Trump campaign “collusion” with the Russian government’s hacking.

Rather, as I and others have been explaining since the four-page letter came out a month ago, there may not have been enough evidence, but there was definitely some. This is confirmed in the first-volume executive summary:

p. 9

Especially since the insufficiency is tied to ongoing investigations (the redacted matter, evidently related to Gates and Stone) and to false testimony (by Flynn, Papadopoulos, etc.), or evidence that was destroyed or otherwise denied to the investigators

p. 10

They might have had sufficient evidence if the report had been delayed until the investigation of Gates and Stone was finished, and/or if suspects hadn't withheld it or concealed it in one way and another. (Or I'm totally convinced they would have; it's way too much evidence to ignore.) 

Steele yourself

"“Red Card,” about corruption involving FIFA, soccer’s global governing body, contains supporting roles for the former spy Christopher Steele and a number of Russian oligarchs and government officials." Simon and Schuster.

Can't help seeing this as a sign of how people in the White House are feeling about the release of the redacted Mueller report tomorrow morning:

Wow! FBI made 11 payments to Fake Dossier’s discredited author, Trump hater Christopher Steele. @OANN @JudicialWatch The Witch Hunt has been a total fraud on your President and the American people! It was brought to you by Dirty Cops, Crooked Hillary and the DNC.

— Donald J. Trump (@realDonaldTrump) April 17, 2019

The story to which he's referring goes back, in fact, to last August, when NBC was reporting that the FBI had released 70-odd heavily redacted pages of its correpondence with Steele, recording his service to the FBI as a Confidential Human Source over some  unspecified period of time—every single date is among the things redacted—including the fact that they'd given him or his firm some money for his troubles but obviously not revealing what they'd been paying him for or when.

Now it's been taken up by some of the usual suspects, notably Judicial Watch, the king of rightwing FOIA requests, darkly hinting at a connection to that same Underpants Gnomes story: Bruce Ohr must have been paying Steele to provide him with evidence that would enable him to tape Carter Page's phone calls so that if Trump unexpectedly got elected they could um do whatever it is you do with Carter Page tapes when you want to impeach the president. As you can see, the passage of time is not making this plan any more coherent.

But the thing is it's not at all difficult to guess when and where Steele got most of his payments from the FBI, because it's pretty much a matter of public record, and it had nothing to do with Carter Page of the Trump campaign; it was not long after he'd retired from MI6 and set up his own shop in 2009, and

Underpants Gnomes in the Russia Investigation

Via IresPuestas.com.

Just to refresh everybody's memory, when Trump howls "They SPIED on me!!!" what he means is that the Foreign Intelligence Surveillance Court approved an order of federal surveillance on a former foreign policy adviser to candidate Donald Trump called Carter Page, in October 2016, on evidence that included some raw intelligence gathered by a former MI6 Russia expert called Christopher Steele for a firm called GPS Fusion which had a contract with the Democratic-connected Perkins Coie law firm to do opposition research on Trump, which is incontrovertible proof, according to certain Republicans, that the Democratic Party and the entire leadership of the Federal Bureau of Investigation had a plan (an "insurance policy") to remove Trump from office in the unlikely event he got elected, which they would accomplish by recording Carter Page's phone calls.

Let's just lay that out as an Underpants Gnomes scenario:

1. FBI does electronic surveillance on Carter Page
2. Trump wins the presidential election
3. ???
4. IMPEACH!

This schema is what Attorney General Barr was referring to, not without a little healthy skepticism, when he was talking to the Senate Appropriations Committee on Wednesday. A very little skepticism, so little a lot of people didn't even notice it, which may be what he intended, as we heard Thursday on NPR: